United States:
Marketers’ Email Messages Do Not Violate California’s "Anti-Spam" Law
17 December 2014
Klein Moynihan Turco LLP
To print this article, all you need is to be registered or login on Mondaq.com.
Rosolowski v. Guthy-Renker LLC (Cal. Ct. App. Oct. 29,
2014)
|
Facts:
- Plaintiffs, a putative class, brought this action against
Guthy-Renker LLC ("Guthy") for allegedly sending them
unsolicited commercial email advertisements in violation of
California's Business and Professions Code.
- Specifically, plaintiffs claimed that the "senders"
were not names, OR registered fictitious business names, of
existing firms AND were not traceable to defendant via a
"WHOIS" search.
- Further, plaintiffs claimed that the applicable
"subject" lines indicated that the recipient would be
entitled to a free gift, without also mentioning that the gift was
contingent upon making a purchase.
- Defendant "demurred," arguing that plaintiffs'
claims under the California Code should be dismissed because they
are preempted by the Federal CAN-SPAM Act.
- Defendant argued that the CAN-SPAM Act preempts claims under
the State statute unless the applicable header and subject lines
are materially false or misleading. Here, defendant claimed that:
1) the "from" and "subject lines" contained
famous brand names that were identified with defendant; 2) the body
of the email included identifying information; and 3) the subject
lines accurately referred to a free gift.
California Business and Professions Code § 17529.5 (in
pertinent part, emphasis added):
"It is unlawful for any person or entity to advertise in a
commercial email advertisement either sent from California or sent
to a California electronic mail address under any of the following
circumstances: ... (2) The email advertisement contains or is
accompanied by falsified, misrepresented, or forged header
information ...; or (3) The email advertisement has a
subject line that a person knows would be likely to
mislead a recipient, acting reasonably under the circumstances,
about a material fact regarding the contents or subject matter of
the message."
- The trial court ruled in favor of defendant and sustained the
demurrer.
- The court pointed out that the claims might escape federal
preemption if the misrepresentation in question is
"material."
- Although the "sender" in this case did not identify
defendant, it did use names of the subject advertiser's various
products. Further, the body of the email elaborates on the
free gift offer – identifying the conditions under which a
recipient may obtain the free gift.
- Here, the court concluded that "a reasonable sender would
not have reason to believe that commercial missives like these were
likely to deceive a recipient, acting reasonably under the
circumstances, about a material fact regarding the contents or
subject matter of the message."
- Plaintiffs appealed.
Court of Appeal:
- According to the Court, the goal of the CAN-SPAM Act is to
achieve a regulatory framework that is consistent nationwide.
- The Court reviewed various relevant case law, specifically the
decision in Kleffman v. Vonage Holdings Corp. 49 Cal. 4th
334, 345 (2010), which held that use of a domain name in a single
email that "does not make clear the identity of either the
sender or the merchant-advertiser on whose behalf the email
advertisement is sent" is not prohibited under the California
statute.
- The Court further pointed out that even though the domain names
were allegedly untraceable, the identity of the sender was easily
ascertainable from the body of the email messages.
- The Court took a self-characterized "commonsense"
approach to the reading of the statute and concluded that "a
header line does not misrepresent the identity of the sender merely
because it does not identify the official name of the entity which
sent the email, or merely because it does not identify an entity
whose domain name is traceable via a database such as WHOIS,
provided the sender's identity is readily
ascertainable from the body of email, as was the case
here."
- The Court of Appeal affirmed the lower court's decision,
concluding that the subject lines were not likely to mislead a
recipient acting reasonably under the circumstances about a
material fact regarding the contents or subject matter of the
message.
|
Take Away:
- Because the Court concluded that plaintiffs failed to prove a
violation of the California statute, the court found it unnecessary
to address defendant's argument that CAN-SPAM preempted the
claims.
- Interestingly enough, plaintiff Rosolowski had brought another
putative class action against separate defendants, People Media,
Inc. and People Media LLC, alleging similar claims. The
California Court of Appeal affirmed the lower court's dismissal
there as well, holding similarly that, "a header line in a
commercial email advertisement does not misrepresent the identity
of the sender merely because it does not identify the official name
of the entity which sent the mail, or merely because it does not
identify an entity whose domain name is traceable from an online
database, provided the sender's identity is readily
ascertainable from the body of the email, as was the case
here."
- This latter decision was not published in California's
official reports.
- These California Court of Appeal decisions provide greater
clarity – and protection – to email marketers and
reinforce the notion that the text of the email messages themselves
cannot be disregarded in evaluating their propriety under
California State law.
- Please note that this decision is limited to California State
law only and, as such, is at best persuasive authority in other
jurisdictions.
|
|
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Media, Telecoms, IT, Entertainment from United States
West Virginia Proposes Mini-TCPA Law
Goodwin Procter LLP
In late January, the West Virginia Legislature introduced two bills aiming to regulate and expand the telemarketing laws in West Virginia.
Email Marketing Is Back!
Klein Moynihan Turco LLP
As federal and state regulators continue to crack down on telemarketing and text message marketing, businesses are now transitioning back to email marketing to reduce Telephone Consumer Protection...